Ebanks (Andrew) v Jephther McClymont

• Jurisdiction: Jamaica
• Judge: SYKES J.
• Judgment Date: 08 March 2007
• Judgment citation (vLex): [2007] 3 JJC 0803
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2004 HCV 2172
• Date: 08 March 2007

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2004 HCV 2172

BETWEEN

ANDREW EBANKS

CLAIMANT

AND

JEPHTHER McCLYMONT

DEFENDANT

Janet Taylor instructed by Taylor, Deacon and James for the claimant

Hugh Wilson for the defendant

DAMAGES - Loss of amenities - Loss of earning capacity

CIVIL PROCEDURE - Search Order - Application for reversal

1 REFUSAL OF APPLICATION FOR ADJOURNMENT, RULE 39.7 OF THE CIVIL PROCEDURE RULES, ENTRY OF JUDGMENT, ASSESSMENT OF DAMAGES, LOSS OF EARNING CAPACITY

SYKES J

2 1. Mr. McClymont is a recording and performing artist. He has been sued by Mr. Andrew Ebanks in respect of injuries received by Mr. Ebanks when he was struck by a motor vehicle driven by Mr. McClymont. The defendant is absent. When the matter came up for trial on February 5, 2007, Mr. Hugh Wilson, counsel for the defendant, indicated that Mr. McClymont was out of Jamaica. Mr. McClymont was in Australia. I granted an adjournment to February 6, 2007. On that date, Mr. Wilson renewed his application for an adjournment. He said that the defendant was still in Australia. I declined to grant a further adjournment; entered judgment for the claimant and proceeded to the assessment of damages.

3 Reasons for refusing adjournment

4 2. Mr. Wilson in applying for the adjournment on both days relied on rule 39.7 (1) of the Civil Procedure Rules ("CPR") which reads:

The judge may adjourn a trial on such terms as the judge thinks just.

5 3. The rule is cast in very wide terms but that does not mean that it has no boundaries. When exercising any discretion under the CPR, a judge must take into account rule 1.1 which requires that the matter be dealt with justly. It emphasises that dealing with the case justly includes, ensuring that the case is dealt with expeditiously, fairly and allotting to it an appropriate share of the court's resources while taking into account the need to allot resources to other cases.

6 4. Mr. Wilson submitted that this was the first trial date and that the absence of the defendant was not flagrantly intentional . He added that I could include a punitive sanction that would be activated if the defendant fails to appear at the next trial date.

7 5. The hi story of the matter is this. The accident occurred on October 28, 2003. The defendant was present at the case management conference held on March 22, 2006, when the matter was set for trial on February 5, 2007. At the pre-trial review held on September 19, 2006, the trial date was confirmed and there was a further pre-trial review set for November 29, 2006.

8 6. It took the claimant two years from the date of filing his claim to get to case management and fortunately for hi m he was able to secure a trial date within three years from the year of filing his claim. During these three years, the claimant has been incurring significant legal expense to prosecute his claim. There is no evidence of tardiness or del ay on his part. He has done all that he needed to have done to bring the matter to trial . The claimant was a fisherman. For fear that images of large trawlers are raised in the minds of persons let me say that his fishing vessel was a canoe. By all account, he is a man of modest means who needs to have the matter resolved as quickly as possible.

9 7. When a defendant decides not to attend trial , as Mr. McClymont has done in this case, and there is no satisfactory explanation for his absence the court should be loathe to grant an adjournment. The fact that it is the first trial date is a factor to be taken into account but cannot be conclusive of the matter. We must get to the point where a first trial date is seen as a real trial date and not merely a historical fact to be recited in an application for an adjournment. The court has to have an eye not just on the litigants in the immediate matter but also on other litigants who may be hampered in the prosecution of their claim if a disproportionate amount of the court's resources have been allocated to other cases. The court must not communicate the idea that merely because a trial date happens to be the first one, it is not to be taken seriously. In this particular case, two days were allocated for trial . It would be sending the wrong signal to litigants if I were to grant an adjournment in the absence of some compelling reason why this defendant was absent after confirming the date not once but twice.

10 8. Were I to grant an adjournment it would increase the expense of the claimant. His anxiety would be heightened because the expected resolution of the matter would be delayed possibly for another two years. We have not yet reached the levels of efficiency where a new trial date can be had readily within weeks of a missed trial date. There is no guarantee that his witness would be available at the next trial date. He would have to live with the stress and anxiety of a pending trial for some additional months possibly years since it is not unknown that any adjournment may mean a trial in late 2008 or early 2 009. Costs are not a panacea in a system that still does not have as a norm, a time of twenty four to thirty six months, from the date of filing of claim to judgment after a trial . I have to take into account the possibility of significant del ay before the next trial date. I also consider whether there would be an injustice to the defendant. Mr. McClymont has been granted all reasonable opportunity to defend the claim. There was a case management conference and two pre-trial reviews at which he was present and represented by counsel .

11 9. Mr. Wilson did not advance the argument that his client did not know of the trial date before he went to Australia. I therefore conclude that he went to Austral i a with full knowledge of the date and the possible consequences should he not return for trial . There is no evidence that Mr. McClymont had to depart on this tour on short notice. Neither is there any evidence that he did not know of the tour before hand. On the face of it, it seems to me that Mr. McClymont decided that the tour of Australia took precedence over his attendance at trial . There was no evidence of the length of this tour and when he would return to Jamaica. Mr. McClymont, it appears, took a calculated risk and he clearly balanced the worst and best possible outcomes and made his choice as a free autonomous adult. That is his right. I conclude that a litigant who deliberately absents himself from the trial cannot legitimately complain of injustice if the matter proceeds in his absence. This cannot be an injustice to hi m. For these reasons, the adjournment was not granted. I go to the assessment of damages.

12 The assessment Special damages

13 10. Special damages were agreed at $353,532.70. This sum is awarded at 3% interest from October 28, 2003, to February 6, 2007.

14 General damages Nature and extent of injuries sustained

15 11. Mr. Ebanks was hit from his bicycle by a pickup truck driven by the defendant while riding to work at approximately 2:50am on October 2 8, 2 003 . He was knocked unconscious and when he regained consciousness, he recalls that he was in a lot of pain and his right leg was being treated by a physician at the Black River Hospital in St. Elizabeth. He lost consciousness again.

16 12. The report from the Black River Hospital dated January 19, 2004, showed that Mr. Ebanks had a comminuted fracture of the shaft of the femur; an open comminuted fracture of both tibia and fibula. He was transported to the Mandeville Hospital in the adjoining parish of Manchester.

17 13. On arrival at the Mandeville Hospital , he received further treatment. He testified that at this hospital a pin was placed through his ankle which caused him to scream in pain. It turned out that he had fractured his leg below and above the knee. His leg was placed in a position so that the bones would grow toward each other. In order to promote this growth of new bone, his lower right limb was held in a fixed position. The treatment regime saw hi m being admitted to the surgical ward and give intravenous fluids, placed on skeletal traction for 1 40 days. He was kept under close neuro-observation.

18 14. During the 1 40 days he had debridement and placement of an external fixator on the right leg. He suffered a pin site infection which was treated with antibiotics. His leg was dressed daily. He developed a fungal rash. The medical report from the Mandeville Hospital spoke of a closed fracture to the right femur and an open fracture involving the right tibia. There was no neurovascular damage. He suffered abrasions to the face and a superficial laceration to the right knee.

19 15. Consistent x-rays done over the period did not show any evidence of healing and a diagnosis of non-union was made. A decision was therefore taken to send Mr. Ebanks to the Kingston Public Hospital ("KPH") for further operative management. At KPH, he underwent an operation during which a metal bar was placed in his thigh.

20 The nature and gravity of resulting physical disability

21 16. After his hospitalisation, Mr. Ebanks was seen at the Mandeville Hospital orthopaedic clinic on March 29, 2004, and was recovering quite well. He was also seen on April 5, 2004, and he had no complaints and he was instructed to commence physiotherapy and return to the clinic four weeks later. No opinion could be expressed on any disability or impairment he might suffer at the time he was seen at the clinic. Any such opinion would have to await the complete healing of the fracture and ability to weight bear fully. There is no medical report that indicates any permanent disability or impairment but this does not mean that there is none. There is unchallenged evidence from the claimant that he has stiffness of the knee and a shortened right leg.

22 17. The claimant says that he is...